This document discusses several cases related to terms of contracts. It covers issues like whether oral statements became implied terms, when written terms took precedence over prior representations, conditions versus warranties, and implied terms. For example, it discusses a case where a statement about a motorcycle's model year was not considered a contractual term since it was not included in the later written agreement. It also examines cases focused on determining when exact compliance with a term was a condition allowing termination versus a warranty only permitting damages.

1. Cases On Terms Of The Contract
Burgess v Wickham (1836) B&S 669
It was held that a person who takes out a policy of marine insurance can show that the insurer
knew the ship to be unseaworthy, and so negative the usual implied warranty of seaworthiness.
Pym v Campbell (1856) 6 E&B 370
A written agreement for the sale of a patent was drawn up, and evidence was admitted of an oral
stipulation that the agreement should not become operative until a third party had approved of
the invention.
City & Westminster Properties v Mudd [1959] Ch 129
The defendant, who had been a tenant of the premises for six years, had resided at the shop.
When the lease fell for renewal, the plaintiffs inserted a clause for use of the premises to be for
business purposes only. The defendant asked if he could sleep there, was told that he could and
he signed the lease. Even though this assurance contradicted the lease, evidence of it was held
admissible to prove a collateral contract which the tenant could plead in answer to a claim for
breach of contract.
Page 1 of 7

2. 2a. REPRESENTATIONS AND TERMS
Routledge v McKay [1954] 1 WLR 615
The defendant stated that a motor cycle, the subject matter of the proposed sale, was a 1942
model. In the written contract, signed a week later, no mention was made of the date of the
model. The lapse of a week between the two events weighed with the court as a factor militating
against construing the statement as a contractual term. (See further below)
Schawel v Reade [1913] 2 IR 64
The defendant told the plaintiff, who required a horse for stud purposes, that the animal was
'perfectly sound'. A few days later the price was agreed and, three weeks later, the plaintiff
bought the horse. The statement was held to be a term of the contract, but here the defendant,
who was the owner of the horse, would appear to have had special knowledge.
Bannerman v White (1861) CB(NS) 844
The buyer of hops asked whether sulphur had been used in their cultivation. He added that if it
had he would not even bother to ask the price. The seller assured him that it had not. This
assurance was held to be a condition of the contract. It was of such importance that, without it,
the buyer would not have contracted.
Routledge v McKay [1954]
In the written contract, signed a week later, no mention was made of the date of the model. It was
held, on this point, that what the parties intended to agree on was recorded in the written
agreement, and that it would be inconsistent with the written agreement to hold that there was an
intention to make the prior statement a contractual term.
Page 2 of 7

3. Birch v Paramount Estates (1956) 167 EG 196
The defendants made a statement about the quality of a house. The contract, when reduced to
writing, made no reference to the statement. The Court of Appeal regarded the statement as a
contractual term. But here the defendants had special knowledge.
Harling v Eddy [1951] 2 KB 739
The vendors of a heifer represented that there was nothing wrong with the animal but, in fact, it
had tuberculosis from which it died within three months of the sale. A contributory factor leading
the Court of Appeal to decide that the statement was a term of the contract was that the vendors
were in a special position to know of the heifer's condition.
Page 3 of 7

4. 2b. CONDITIONS AND WARRANTIES
Poussard v Spiers (1876) 1 QBD 410
Poussard was engaged to appear in an operetta from the start of its London run for three months.
The plaintiff fell ill and the producers were forced to engage a substitute. A week later Poussard
recovered and offered to take her place, but the defendants refused to take her back.
The court held that the defendant's refusal was justified and that they were not liable in damages.
What chiefly influenced the court was that Poussard's illness was a serious one of uncertain
duration and the defendants could not put off the opening night until she recovered. The
obligation to perform from the first night was a condition of the contract. Failure to carry out this
term entitled the producers to repudiate Poussard's contract.
Bettini v Gye (1876) 1 QBD 183
Bettini, an opera singer, was engaged by Gye to appear in a season of concerts. He undertook to
be in London at least six days before the first concert for the purpose of rehearsals. He arrived
three days late because of a temporary illness. He gave no advance notice and Gye refused to
accept his services.
It was held that the plaintiff had been engaged to perform for a 15-week season and the failure to
attend rehearsals could only affect a small part of this period. The promise to appear for
rehearsals was a less important term of the contract. The defendant could claim compensation for
a breach of warranty but he could not repudiate Bettini's contract.
The MihalisAngelos [1971] 1 QB 164
The owners of a ship let it to charterers, undertaking that the ship would be expected ready to
load about 1 July, would proceed to a certain port for the loading of cargo, and that the charterer
would have the option of cancelling the charter if the ship was not ready to load by July 20. The
charterer was unable to get a cargo by July 17 and cancelled the charter, alleging that it was
frustrated. The ship itself was not ready until July 23. At trial it was argued that the charterer was
entitled to avoid the contract on July 17 because of a breach of contract by the shipowner, ie he
had impliedly promised that he had reasonable grounds for believing that the ship would be
ready to load on July 1, and that there were no such grounds. The trial judge held that there was a
Page 4 of 7

5. breach of this term, but the term was not a condition and the breach was not so fundamental as to
give the right to terminate the contract.
The Court of Appeal held that the term was a condition and that the charterer had properly
avoided the contract even though he had done so on the ground that the contract was frustrated
when this was not the case. Lord Denning stated that "The fact that a contracting party gives a
bad reason for determining it does not prevent him from afterwards relying on a good reason
when he discovers it." Megaw LJ, discussing the term "expected ready to load … " stated:
"… such a term in a charterparty ought to be regarded as being a condition of the contract, in the
old sense of the word "condition"; that is that when it has been broken, the other party can, if he
wishes, by intimation to the party in breach, elect to be released from performance of his further
obligations under the contract; and he can validly do so without having to establish that, on the
facts of the particular case, the breach has produced serious consequences which can be treated
as "going to the root of the contract" or as being "fundamental," or whatever other metaphor may
be thought appropriate for a frustration case."
The Hansa Nord [1976] QB 44
Citrus pulp pellets for use in animal food had been sold for £100,000 under a contract which
provided for "shipment to be made in good condition." Part of the goods had not been so shipped
and in addition the market value in such goods had fallen at the delivery date. The buyers
rejected the goods which were later resold pursuant to a court order and eventually reacquired by
the original buyers for just under £34,000. The buyers then used the goods for the originally
intended purpose of making cattle food, though the defective part of the goods yielded a slightly
lower extraction rate than sound goods would have done.
The Court of Appeal held that rejection was not justified. The term as to shipment in good
condition was neither a condition nor a warranty but an intermediate term; and there was no
finding that the effect of its breach was sufficiently serious to justify rejection. The buyers seem
to have tried to reject, not because the utility of the goods was impaired, but because they saw an
opportunity of acquiring them at well below the originally agreed price. In these circumstances
their only remedy was in damages: they were entitled to the difference in value between
damaged and sound goods at the agreed destination.
Page 5 of 7

6. Schuler v Wickman Machine Tools [1974] AC 235
Wickman were the exclusive selling agents in the UK for Schuler's goods. The agency agreement
provided that it was a condition that the distributor should visit six named customers once a week
to solicit orders. This entailed approximately 1,500 visits during the length of the contract.
Clause 11 of the contract provided that either party might determine if the other committed 'a
material breach' of its obligations. Wickman committed some minor breaches of this term, and
Schuler terminated the agreement, claiming that by reason of the term being a condition they
were entitled to do so.
The House of Lords held that the parties could not have intended that Schuler should have the
right to terminate the agreement if Wickman failed to make one of the obliged number of visits,
which in total amounted to nearly 1,500. Clause 11 gave Schuler the right to determine the
agreement if Wickman committed a material breach of the obligations, and failed to remedy it
within 60 days of being required to do so in writing.
The House had regard to the fact that the relevant clause was the only one referred to as a
condition. The use of such a word was a strong indication of intention but it was not conclusive.
Lord Reid felt that it would have been unreasonable for Schuler to be entitled to terminate the
agreement for Wickman's failure to make even one visit because of the later clause. The word
'condition' made any breach of the clause a 'material breach', entitling Schuler to give notice
requiring the breach to be remedied. But not, as Schuler sought, to terminate the contract
forthwith without notice.
Page 6 of 7

7. 3. IMPLIED TERMS
Hutton v Warren (1836) 1 M&W 466
The tenant of a farm was given six months' notice to quit. His landlord insisted that he continue
to cultivate the land during the notice period in keeping with custom. The tenant successfully
argued that the same custom entitled him to a fair allowance for the seeds and labour he used on
the land.
The Moorcock (1889) 14 PD 64
The owner of a wharf agreed to provide mooring facilities for 'The Moorcock'. The ship was
damaged when it hit a ridge of rock at low tide. Although the defendants had no legal control
over the river-bed, they could ascertain its state but they had not done so. The court held that
honesty of business required an implied undertaking on the part of the wharf owner that it was a
reasonably safe place to moor a ship. The wharf owner had broken his implied undertaking and
was, therefore, liable in damages to the ship owner.
Page 7 of 7